Summary
holding three quarter inch height differential between two pieces of pavement non-actionable
Summary of this case from Scott v. U.S.Opinion
December 1, 1997
Appeal from the Supreme Court, Kings County (Greenstein, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, the defendants' respective motion and cross motion for summary judgment are granted, and the complaint is dismissed.
The plaintiff tripped and fell on a three-fourths-inch difference in height between two different segments of pavement in the Borinquen Plaza mall in Brooklyn. The court denied the defendants' motion and cross motion for summary judgment, finding that an issue of fact existed as to whether the slight difference in height between a stretch of red brick "pavers" and the adjoining area of gray cement could "possibly creat[e] a trap or snare". We now reverse.
Generally, the issue of whether a dangerous or defective condition exists "depends on the peculiar facts and circumstances of each case", and is properly a question of fact for the jury ( Schechtman v. Lappin, 161 A.D.2d 118, 121; see also, Evans v. Pyramid Co., 184 A.D.2d 960). However, not every injury allegedly caused by an elevated brick or sidewalk slab need be submitted to a jury ( see, Trincere v. County of Suffolk, 90 N.Y.2d 976). After considering the exiguous dimensions of the defect at issue here, along with all of the other circumstances surrounding the plaintiff's injury, we conclude that no issue of fact is presented, and that the plaintiff's complaint should be dismissed ( see, e.g., Hecht v. City of New York, 60 N.Y.2d 57; Caldwell v. Village of Is. Park, 304 N.Y. 268, 274).
Ritter, J. P., Friedmann, Krausman and McGinity, JJ., concur.